Grant of exclusive use of a family home

"The Family Court has power to temporarily regulate the issue of family housing"

The lack of understanding, communication, interest and relationships between the spouses creates alienation that results in the separation and the termination of the cohabitation, with a common phenomenon being the disruption of family peace and quietness, which is a condition for the cohabitation of the spouses. This situation affects the psychological development and health of the children, especially when there are conflicts and friction, fights, verbal abuse and violent episodes. If cohabitation becomes problematic and impossible, one of the two spouses will have to leave. Despite this, what is observed is the claim of family shelter by both spouses. That is, neither of them agrees to leave the marital residence for the benefit of the other, presenting as an argument his contribution to its acquisition or even his financial inability to find housing elsewhere.

The Law

A temporary solution to this problem until the property relations between the spouses are regulated, can be given by the Family Court, within the framework of the authority granted to it by article 17(1) and 17B of Law 23/1990 as amended by N .2(I)/2023.

Specifically, it is provided that, in compliance with the provisions of article 32 of the Courts Law, the Family Court may, ex officio or upon application by one of the spouses or both spouses jointly, issue, within a reasonable period of time, an interim order, with which the relations of spouses and the relations of parents and children are regulated regarding matters concerning parental care, alimony, family housing and the use of movable property. It is understood that the application submitted for the issuance of an interim order may include more than one issue, for their temporary regulation, and that the same judge deals with all cases concerning these issues between the same parties.

Decision of the Court of Appeal

The Court of Appeal, in the unanimous decision issued by Judge Ms. M. Toumazi E35/2022, dated 20.12.2023, examined the complaints of the husband against whom the Family Court issued an interim order which became absolute, granting the exclusive use of the family home to the wife and ordered him to leave it within 15 days of service of the order to him, and an interim order prohibiting him from entering the family home. This is a case of an estranged spouses with two minor children and the husband claimed, among other things, that the Family Court wrongly did not take into account the fact that he maintains a car repair shop in the matrimonial home, which is his only job, as well as that the coexistence of the spouses in the same space, was possible as long as he could live in the basement.

Reasoning

The Court of Appeal with reference to article 17(1)(2) of Law 23/90 and case law of Vounou v. Vounou indicated that the guiding principle in the exercise of the powers of the Family Court (family housing and the use of what is necessary for a separate establishment), is equity, a concept connected with justice. What the legislator sought with the provisions of Article 17 was to limit, to the extent possible, the adverse effects on the family from the termination of cohabitation. He added that this article enables the Court to grant the use of the family home, even to the spouse who is not the owner.

The Court of Appeal agreed that the Family Court correctly explained that it would not evaluate the testimony for the purpose of reaching findings, a function of the merits of the case. The wife by her affidavit has succeeded in proving that there is a visible possibility of success in the sense of an arguable case and it is admitted that serious incidents were happening between the parties and the wife has lodged a complaint with the police and criminal cases are pending against the husband.

The Court of Appeal emphasized that one of the criteria set by Article 17(1) is the reasons for equity and the best interests of the children, who have as their place of residence the respective place of residence of the mother based on an interim order. The Family Court rightly ruled that the adverse effects on the psychological state of the wife and the children, as well as the removal of her and the children from their home where they are keeping their personal belongings, cannot be valued in money, nor can they be remedied in later stage with the award of damages and dismissed the husband's Appeal.